Sun12172017

Last updateSat, 22 Jul 2017 6am

You are here: Home | Agenda | Access to justice | Is this reformatory justice?

Is this reformatory justice?

By Geeta Sajjanshetty

The Juvenile Justice Act requires a child-friendly approach in investigating and adjudicating cases of children in conflict with the law. The idea is to give these children access to reformative and restorative justice. This article reveals what juvenile offenders and their families really come up against

According to Crime in India, 2011, there has been an increase of 10.5% in the juvenile crime rate for offences under the Indian Penal Code, and an increase of 10.9% in offences under special and local laws. This basically implies that the number of children within the purview of the Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act) has substantially increased (1). Also, according to Crime in India, 2011:“Out of the total juveniles involved in various crimes, 6,122 were illiterate and 12,803 had an education up to primary level, and these two categories have accounted for 55.8% of the total juveniles arrested during the year 2011… A large chunk of the juveniles (56.7%) belonged to poor families whose annual income was up to Rs 25,000.” Most children and their families who come before juvenile justice boards (JJBs) across the country are poor, vulnerable and unaware of their rights under the juvenile justice system.

This article looks at issues surrounding access to justice, quality of child rights lawyering, and the right to free legal aid. My experiences have revealed several problems, including the incompetence of lawyers providing free legal services, a lack of clarity about legal aid and how to procure such services, lack of sensitive and trained staff at observation homes, absence of a defined constructive routine for children at observation homes, lack of sensitised members on the juvenile justice board, and non-filling of vacant positions.

Is this reformatory justice?

Structural and procedural gaps within the juvenile justice system

The Juvenile Justice Act was enacted with the objective of ‘providing proper care, protection and treatment by catering to their developmental needs, and by adopting a child-friendly approach in adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation…’ (2). It deals with children in conflict with the law and children in need of care and protection. The competent authority to deal with children in conflict with the law is the juvenile justice board (JJB) and for children in need of care and protection it is the child welfare committee (CWC). Proceedings before the juvenile justice board are required to be held in a child-friendly manner and in a language that the child understands. The child is given a chance to be heard and participate in the proceedings.

The juvenile justice board comprises two social work members and one judicial magistrate first class. Of the two social work members, one has to be a woman. The social work members should have been actively involved in issues like education, health or welfare activities pertaining to children for at least seven years, and the magistrate must have special knowledge or training in child psychology. The board has powers conferred on it under the Criminal Procedure Code available to a magistrate.

The usual practice is that the chief judicial magistrate is appointed as chairperson of the juvenile justice board. It is difficult to find a magistrate who is well-versed in child psychology; as a result, this eligibility clause remains mostly on paper. Most magistrates who are appointed to the juvenile justice board have no knowledge of child psychology; training is provided to them after their appointment. This impacts the board’s functioning. The tenure of juvenile justice board members is three years.

Pendency and its impact on hearings

The principle of a child-friendly approach contained in the preamble to the Juvenile Justice Act is hardly ever implemented. Due to the heavy case load and increasing backlogs, the juvenile justice board in Bangalore is unable to spare enough time to hear every individual case. So, multiple matters are heard in parallel. For instance, while the magistrate records the evidence in a case, one social work member explains the plea and the other hears the bail application. The process of hearing is thus disorganised and chaotic, turning the goal of promoting child participation into a distant dream. A child who is part of the system finds it difficult to understand or navigate through the procedures and processes.

What compounds the problem is the fact that there are no full-time magistrates at the juvenile justice board in Bangalore and other parts of Karnataka. The magistrate attends to criminal cases five days a week in the regular courts and devotes only a day or half-a-day for juvenile justice board hearings depending on the case load. Delays in filing chargesheets and initiating trials also contribute to high pendency in the juvenile justice boards.

Delayed social investigation reports and the impact on bail 

Investigation of the background of children in conflict with the law is an essential component of the justice process before the juvenile justice board. The child’s social investigation report/probationary report (PO report) is considered before bail is granted. The rationale behind this is to become aware of the child’s socio-economic background. The PO report is a detailed report which should include the educational qualifications of the parents and siblings, physical or mental disability of any member of the family or the child concerned, whether any member of the family is an alcoholic or addicted to any other substance, economic background in terms of monthly income of the family, kind of neighbourhood, etc.

The social investigation report should help the board arrive at a decision with respect to bail. However, the probation officer charged with conducting the social investigation is responsible for the PO reports of hundreds of adult offenders in regular courts as well as children placed in children’s homes. As a result, the reports are sketchy and provide little insight into the background of children in conflict with the law. Often, bail is delayed because the report is not available on time. It is the duty of the lawyer to coordinate with the officer and get the report filed in time. It is critical to have dedicated officers responsible for the preparation of social investigation reports for children in conflict with the law.

Child rights lawyering and the right to legal aid

If the right to access to justice is to be fully realised, the state must provide the right to free, effective and competent legal aid. Article 39A of the Constitution of India says: ‘The state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.’

Legal aid is not limited to representing the client before a court; it also entails helping clients understand the process of justice and make an informed decision about the course of action to be taken. Lawyers also have a duty to assist the board in adjudicating the matter. The lawyer needs to understand that the child and his family may require psycho-social intervention; it is necessary that the lawyer coordinates with other professionals such as counsellors, probationary officers and NGOs for the required services. For instance, a child in conflict with the law may be ousted from school because of an ongoing case. In such circumstances, the lawyer needs to ensure that the child does not face any injustice or suffer social ostracism because of the case, and that the child is re-admitted to school once the case is over. The ultimate objective is that the child should lead a normal life.

There are systemic issues that plague free legal aid to juveniles in conflict with the law. To start with, the procedure of availing of free legal aid -- details about lawyers and their contact numbers -- is not made available to family members when they come to rescue the child. There is often a nexus between the police and private lawyers and on apprehension of a juvenile, families are often directed to a private lawyer by the police.

The quality of representation before the justice juvenile board also warrants scrutiny. Most lawyers appearing before the board are interested only in getting the child out on bail, which is also the family’s demand. They betray a shallow understanding of juvenile justice, as little consideration is given to whether it is in the interests of the child to be released on bail. The board has to consider whether the child should be let out on bail or whether bail would expose the child to moral, physical or psychological danger. These matters are usually handled in a routine manner and once bail is granted and the child goes home, the lawyer disappears.

After getting bail, the juvenile needs to appear before court only after the police files a chargesheet. And since the chargesheet is rarely filed on time, there is a long gap between hearings. The hunt for a new lawyer commences at the start of the next hearing. This is a problem many families face irrespective of whether the lawyer is a free legal aid lawyer or a private one.

Things need to be explained to the child and his/her family at every stage of the process. The most crucial stage in these proceedings is the recording of the plea. The child must be thoroughly counselled, and emotional, social and psychological support extended at this stage. However, cases are often routinely dealt with and the child is told to plead ‘not guilty’,  with a view to defending the child. There may be cases where the child has committed an offence and a guilty plea may have therapeutic/healing effects on the child. At times, board members ask the child in conflict with the law to plead guilty so that the case can be closed immediately. This happens especially in old cases; the interests of the child are completely negated and become secondary.

The measly remuneration offered to lawyers on the legal aid panel may explain the lack of interest in providing services to children in conflict with the law. In Karnataka, a legal aid lawyer is paid Rs 250 per sitting, which is too little for any lawyer to sustain his services. Enhanced remuneration could potentially improve the quality of legal services. At the same time, the need to monitor and evaluate the provision of legal aid is important. For its part, the juvenile justice board should try and ensure that lawyers who are assigned cases handle the matter until it is over and not just concern themselves with getting the child out on bail. The state has to ensure that free legal aid lawyers are effective, competent, child-rights oriented, and sensitive. Completion of legal education in itself does not prepare law graduates for handling child cases; child rights lawyering is a specialised area requiring an understanding of the case not just from a legal context but from the psycho-social perspective as well. Therefore, in-depth training could help build a cadre of lawyers who promote child rights jurisprudence in India.

The right to legal aid for children in conflict with the law who have been denied bail and are living in observation homes cannot be ignored. Training for staff at observation homes is non-negotiable. The stark reality is that most staff are not trained to handle children in conflict with the law. Out of sheer frustration with the system, in January 2012, three children in conflict with the law and housed at an observation home at Bangalore allegedly attempted suicide (3). Staff members often hurl abuse at the children and are incapable of handling children from different backgrounds and children in difficult circumstances. The rehabilitative aspect of these spaces stands severely compromised due to these shortcomings. Staff at such homes must ensure a lively atmosphere for all children.

The right of children in observation homes to education should be respected. Although the Right of Children to Free and Compulsory Education Act, 2009 mandates that all children from the ages of 6 to 14 must attend school, this right finds no place in the juvenile justice system as these children represent a floating population. The government has made no effort to ensure that children in conflict with the law who do not get out on bail are given the benefit of an education.

Some children suffer emotional trauma because of the guilt of having committed the offence, or because they are away from their families, or because of the abuse that they may suffer. Such children desperately need the services of a counsellor. There is, however, no facility for full-time counsellors. In places like Gulbarga and Bidar, there is no counsellor at all.

With the aim of reforming children, the JJB can give disposition orders according to Section 15 of the Juvenile Justice Act; the case can be closed with advice and an admonition; a child in conflict with the law can be asked to do community service; a fine may be imposed if the child is above 14 years of age and is working or has parents who can pay the fine; the juvenile can be directed to participate in group counselling or similar activities. The juvenile justice board can pass an order directing that the child be placed in a special home for a period of three years; this is the highest penalty/punishment that the board can order even for the most serious offence. The special home should provide vocational training and set a daily routine so that the child receives special attention. This training should help him resume life on a fresh note. However, orders such as group counselling and community service are used very rarely as a means of reformation of juveniles.

Conclusion

Improving and providing uninhibited access to effective, competent and free legal aid lawyers, capacity-building and sensitisation of staff in observation homes, probationary officers, members of the juvenile justice board, and allocation of full-time magistrates may help implement the law in spirit. Children in conflict with the law should have access not merely to justice but to reformative and restorative justice.

Note: This article draws most of its observations from the Juvenile Justice Board (Urban and Rural), Bangalore

(Geeta Sajjanshetty works with the Centre for Child and the Law (CCL), National Law School of India, as a Research Associate, and is part of CCL’s multidisciplinary help desk team at the observation home, Bangalore. The team provides free legal aid, assistance and counselling services to juveniles and their families)

Endnotes
1 Crime in India, 2011
2 Preamble of the Juvenile Justice (Care and Protection) Rules, 2007
3 http://www.thehindu.com/news/states/karnataka/article2868193.ece

Infochange News & Features, March 2013